Monday, October 5, 2015

Is Cooperation Possible Between Hong Kong's Legislature and Executive?

Simon Young
South China Morning Post
6 October 2015
As the Legislative Council prepares for its last year before the 2016 election, it is timely to reflect on its relationship with the executive branch. In his speech last month, Zhang Xiaoming , director of the central government's liaison office in Hong Kong, spoke of the Basic Law ideal that there be "cooperation" between the two branches and "checks and balances of power". With glass throwing in the chamber, endless filibustering and the ongoing saga of approval for the innovation and technology bureau, cooperation seems far from reality.
      Zhang also made this ambiguous statement about the relationship: "There is cooperation in checks and balances and there are checks and balances in cooperation." Was he simply trying to be clever or was there something more substantive to those words? If it was the latter, then let me try to flesh out what might have been intended.
     Let's start with "checks and balances in cooperation". I think this means that checks and balances should be exercised with mutual respect for the authority and powers of the other branches. It implies that each branch knows its own limits and does not overreach into another branch's sphere of authority. In a 2013 judgment of the Court of Final Appeal, non-permanent judge Sir Anthony Mason took note of the limits on courts in judicial review. He wrote: "The separation of powers may deny jurisdiction to the courts when the function involved is exclusively the province of the legislature or the executive". Courts back off "where a political rather than a legal solution may be called for" or when "courts are not institutionally equipped or competent to deal with the issues". The legislative and executive branches should follow this example of having a self-awareness of, and respect for, the limits of each branch's authority, so as to achieve better cooperation.
      Does "cooperation in checks and balances" mean anything different? I offer this interpretation... Click here to read the full article.

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